| Peluso v Janice Taxi Co., Inc. |
| 2010 NY Slip Op 07393 [77 AD3d 491] |
| October 19, 2010 |
| Appellate Division, First Department |
| Samantha Peluso, Respondent, v Janice Taxi Co., Inc., et al.,Appellants, et al., Defendants. |
—[*1] Craig L. Davidowitz, P.C., New York (Nolan Matz of counsel), for respondent.
Order, Supreme Court, New York County (Paul Wooten, J.), entered September 28, 2009,which denied defendants-appellants' motion for summary judgment dismissing the complaint for lack ofa serious injury, affirmed, without costs.
On the issue of causation, plaintiff's expert's conclusion that plaintiff sustained injuries as a result ofthe accident is based on a physical examination of plaintiff just days after the accident and is sufficient torebut defendants' evidence that the disc bulging revealed on an MRI taken some six weeks after theaccident was the result of a preexisting degenerative condition (see Linton v Nawaz, 62 AD3d 434 [2009], affd on other grounds14 NY3d 821 [2010]). On the issue of seriousness, plaintiff's expert's conclusion that plaintiff hassustained permanent, significant losses and limitations to her spine is supported by objective evidence,in particular, MRIs revealing injuries to her spine that he qualitatively relates to plaintiff's losses andlimitations (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]). The motion courtproperly considered these unsworn MRI reports as they were incorporated into the expert's swornreport (see Thompson v Abbasi, 15AD3d 95, 97 [2005]). Plaintiff adequately explains the gap in treatment by offering proof of thetermination of her insurance benefits, and her own statement that she could not continue physicaltherapy out of pocket (see Wadford vGruz, 35 AD3d 258, 258-259 [2006]). We have considered and rejected defendants' otherarguments. Concur—Moskowitz, Freedman and Manzanet-Daniels, JJ.
Friedman, J.P., and Nardelli, J., dissent in a memorandum by Nardelli, J., as follows: Since Ibelieve that plaintiff failed to meet her burden of demonstrating the existence of [*2]factual issues as to whether her injuries were the result of a preexistingcondition, and thus as to whether she incurred a serious injury, I would reverse and dismiss thecomplaint.
In moving for summary judgment, defendants Janice Taxi Co. and Nicholas Caamo, the owner anddriver, respectively, of the taxicab which was involved in a collision with the vehicle in which plaintiffwas driving, offered, inter alia, the affirmed report of Dr. David Milbauer, dated August 5, 2007. He, inturn, referenced an MRI taken of plaintiff's spine, dated March 15, 2005, approximately six weeksafter her accident. Dr. Milbauer stated that the MRI showed "[d]iffuse degenerative disc bulging atLS-51 and minor disc bulging . . . elsewhere, without significant compromise of the canalor neural foramina throughout." Dr. Milbauer further concluded, "The examination demonstrates nofindings to indicate that a traumatic injury of the lumbar spine was sustained in the accident of February5, 2005." The doctor then stated, without equivocation, "The disc bulging present is degenerative inetiology and preexists the accident of February 5, 2005."
Plaintiff admittedly had suffered injuries to her neck as a result of a prior automobile accident, andhad instituted a lawsuit in connection with that accident. She also testified at her deposition that she hadpreviously received physical therapy and chiropractic adjustments for work-related back pain, and wasa professional football player. In opposition to the motion, plaintiff offered various reports, including onefrom Dr. Gideon Hedrych dated July 25, 2008, approximately one year after Dr. Milbauer's report.Only this July 25 report postdates the report by Dr. Milbauer. Nowhere in his July 25 report does Dr.Hedrych, even obliquely, refer to or address the findings in Dr. Milbauer's report that the symptomsdisplayed in the MRI demonstrated only the existence of a preexisting degenerative condition. WhileDr. Hedrych opined that plaintiff's symptoms were "causally related to the injuries sustained in theaccident of 2/5/05," he did not even attempt to rebut the observation, provided by Dr. Milbauer as amedical conclusion, that plaintiff's symptoms did not result from trauma, but were purely degenerativeand preexisted the accident. This failure to address Dr. Milbauer's findings is particularly perplexing inview of plaintiff's admitted prior medical history, as well as her occupation as a professional footballplayer.
The Court of Appeals has made clear that when a showing is made that a "plaintiff's alleged painand injuries were related to a preexisting condition, plaintiff [has] the burden to come forward withevidence addressing defendant's claimed lack of causation" (Pommells v Perez, 4 NY3d 566, 580 [2005]). Failure to specificallyaddress a defendant's expert's informed opinion that the condition results from a degenerative conditionwarrants dismissal, as this Court has noted on many occasions (see e.g. Eichinger v Jone Cab Corp., 55 AD3d 364, 365 [2008]; Chong Sim Kim v Amaya, 51 AD3d487, 488 [2008]).
Thus, since plaintiff, despite having been put on notice by a nonconclusory medical report ofdefendants' position that her condition was degenerative, and not the result of the accident, did notrespond to the proffered evidence on the motion, where the laying bare of her evidence was required,summary judgment dismissing the complaint for want of serious injury should have been granted.